Threatened plants on state lands have few protections

Politics, land ownership and imperiled plants collide in New Mexico.

Last January, Will Barnes and a few colleagues from the New Mexico State Land Office fanned out across a small ridge in the Chihuahuan Desert near the Black River, south of Carlsbad. It was a clear winter day, and they walked slowly, heads down, scrutinizing the soil. They were responding to a rancher’s complaint about erosion issues that could result from a planned oil well pad. But Barnes, a biologist and the Land Office’s deputy director of field operations, was also concerned about a rare wild buckwheat — a diminutive, waxy-leafed plant found nowhere else in the world but on 234 acres in Eddy County, New Mexico.

 

Murchison Oil and Gas planned to build the well pad on a lease on state-owned land, right on the boundary where it meets federal land. The company would cut a 37-foot-deep incision through the middle of a gypsum ridge, the remains of an ancient sea that once covered this desert. Not many plants thrive in gypsum soils, but this wild buckwheat requires them.

The side of the ridge under federal Bureau of Land Management jurisdiction is managed to protect the plant, which is listed as threatened under the Endangered Species Act. On the federal side, you can’t build oil pads, new roads, pipelines or anything else within the buckwheat’s habitat. On the state side, though, no such rules apply.

Still, Barnes thought state officials might be able to work with the company to move the pad if they found any plants. On the federal side, they spotted dozens — small and partially desiccated in their dormant state, their leaves red, dappled with green. On the state side, “there weren’t tons,” Barnes says. “But there were some” — three, as far as they could tell.

Two days later, back in his office in Santa Fe, Barnes began typing out a memo, outlining the erosion risks and threats to the buckwheat. He planned to suggest relocating the pad — to somewhere with less fragile soils and no listed species — or at least completing a biological survey and erosion-control plan. But on Jan. 23, before he could get feedback and finalize the memo, he got a call from the land office’s man in Carlsbad. The well pad had already been built.

 

Gypsum wild buckwheat (Eriogonum gypsophilum) is found only on a small tract of land in southeast New Mexico. It’s protected as a threatened species on federal land, but can be destroyed by development on adjacent state land.
Mike Howard/ BLM New Mexico

Plants don’t get a lot of respect, and certainly not what’s lavished on mammals, fish and birds. Botanists call the inability to appreciate, or even notice, flora “plant blindness.” It’s the tendency to see botanical life as a mere stage set for life forms more like us — the things with eyes, ears, mouths and feet. New Mexico is the fourth most botanically diverse state in the nation, with over 4,000 native species. But “most people just see green,” says state botanist Daniela Roth, a view of the world she calls “pretty flat.”

Even the Endangered Species Act suffers from plant blindness. Though 57 percent of listed species are plants, they get only 4 percent of the money spent under the law, according to one recent study. And while legal protections for listed animals apply to federal, state and private lands, plants are protected only on federal land.

That means it is up to states to pass laws to protect rare plants everywhere else. “There are some states that do have strong endangered species laws,” says Alejandro Camacho, a law professor at the University of California-Irvine. “But they tend to be significantly less protective.” And sometimes they’re nonexistent: Colorado, Idaho, Montana, Utah, Washington and Wyoming provide no protection to threatened and endangered plants, according to Camacho’s research.

New Mexico has good intentions, but spotty execution. In 1978, the Legislature ordered the Energy, Minerals and Natural Resources Department to study the state’s native flora, create an endangered list, and figure out how to keep the plants on it alive. “Under the state law, I’m in charge of all 4,000 species in New Mexico, and I’m supposed to make sure none of them go extinct,” Roth told me, when I visited her at her office in late September. She gave me a look that seemed to say, That sounds crazy to you, too, right?

“I’m the only one who speaks for rare plants,” she added. “Which is a serious responsibility, because we have rare plants that are so rare.”

It’s also nearly impossible, because Roth has so few tools to wield. She’s a carpenter without a hammer, saw, nails or wood glue. There’s little money for on-the-ground conservation, and her agency has no regulatory authority over how plants are managed on state lands. Those decisions fall to the State Land Office, and more specifically to its elected commissioner, who has sweeping authority over the 9 million acres held in trust for New Mexicans and managed to optimize revenue to help fund public schools.

The only thing the state’s endangered plant law explicitly prohibits is the collection of listed plants without a permit. It is illegal to drive down to Carlsbad, covertly dig up a gypsum wild buckwheat, and plant it in your garden. But it is not illegal to buy an oil lease and bulldoze it, killing plants in the process. And in the midst of the hottest onshore oil play in the U.S., bulldozers are undoubtedly the more formidable threat.

The Murchison well pad, set in gypsum wild buckwheat habitat near Carlsbad, New Mexico.
Cally Carswell

The Chihuahuan Desert doesn’t loudly advertise its botanical riches. From a distance, it can look pretty bleak — rubble hills, lanky shrubs and dry bunchgrass, blending together into a dull Army green.

It takes time and patience to appreciate this place. You have to walk slowly, look carefully, get closer. It helps to get down on your knees, bring your nose within inches of the soil. Beauty lies in the details: The fist-sized cactus growing at a 90-degree angle from a rock ledge. Black and red lichen crusted to the surface of the soil. The delicate, reflective hairs on the gypsum wild buckwheat, which help deflect the oppressive summer heat.

“This one is beautiful,” says Jaclyn Adams, crouching down beside a 4-inch-wide buckwheat in a BLM research plot close to the Murchison well pad. It’s a cloudy October morning, just after a nice rain, and she bends one of its smooth leaves like a soft taco. They’re succulent and flexible. “This guy’s pretty healthy.”

Adams spent the field season as an intern with the BLM, setting up long-term research plots in the three locations in Eddy County where the buckwheat grows. Trained as a wildlife biologist, she expected the work to be simple. “I would think, ‘Oh, plants, they don’t move, that’s going to be easy,’ ” she explains. But desert plants are opportunistic and can be surprisingly squirrelly. “We’ll have them all tagged in a plot, and then depending on the monsoon, all of a sudden you’ll see a bunch more. And you’re like, where did these come from overnight?”

Adams and Katie Sandbom, the Carlsbad field office’s resident botanist, show me around the buckwheat’s haunts. Of the three populations, the Black River one is the hardest to manage. Its population runs across both state, federal and private land in an area that’s booming with new energy development. This part of southeastern New Mexico lies in the Permian Basin, which currently produces roughly as much oil as all other onshore plays in the U.S. combined, from a mix of federal, state and private lands.

We scramble down and up a draw and traverse a ridge to the Murchison well pad. Sandbom points out that the well pad on the state side is close enough to buckwheat plants that, if it were BLM land, the agency wouldn’t have permitted it there, whether or not the pad impacted plants directly.

As it turns out, Murchison owns a lease on the BLM side, too. Earlier this year, before even applying for federal drilling permits, company representatives visited the site with BLM staff to look at options for locating wells away from the plants and minimizing disturbance. If and when they do apply to drill, the BLM would formally review the plans, as mandated by the National Environmental Policy Act, looking for impacts to endangered species, archaeology, and sensitive soils, as well as potential hazards like floodplains.

This points to a major difference in how the feds and the state address — or neglect — the biological impacts of development. The feds have a framework for flagging issues such as sensitive plants when companies want to drill. When conflicts arise, they have a legal obligation to try to mitigate impacts before construction.

The state, for the most part, does not impose this level of planning and review. For certain types of infrastructure — pipelines, for example — companies do submit plans to the State Land Office for approval. In those cases, a biologist who works under Barnes checks the location of the proposed development against GIS data on rare species, and may make mitigation recommendations.

Exactly how biological issues are handled at any given time is influenced by the priorities of the elected commissioner. The last commissioner, Ray Powell, a Democrat, had no formal policy for how the land office should deal with impacts to rare plants. But the office did, at least in some cases, work with companies to transplant rare cacti in northwest New Mexico’s San Juan Basin out of the path of pipelines. The current commissioner, Republican Aubrey Dunn, instituted a formal policy to bring clarity and consistency to the process. It requires the land office to notify companies of the presence of state and federally listed plants on their leases. It’s then up to the companies to decide how to address any impacts.

And for run-of-the-mill leases for oil and gas wells, there’s no biological review whatsoever. The terms of these leases are specified by a state statute, and after a company buys one, it applies for drilling permits through another state agency. The Oil Conservation Division scrutinizes drilling plans for potential impacts to groundwater, but does not look at issues aboveground, including the possible presence of rare plants, or hazards like wells and tanks sited in floodplains.

“We don’t do any field review before the sales happen,” Barnes explains. “It just hasn’t ever been done.” As a result, he says, “We only find out about stuff when things go wrong. So a series of well pads built in a floodplain get washed away. Well, we didn’t know they were there until the flood happened.”

The narrow nature of the review helps explain why the state takes only 10 days to process drilling permits, compared to an industry-reported average of 250 days for the BLM in Carlsbad. And it also explains why the buckwheat plants on state land were plowed under, while next door — on BLM land — they’re scarcely disturbed.

“There’s no infrastructure for protecting plants,” Barnes says. “The state statute is pretty ambiguous, and it doesn’t give anyone any particular authority to stop anything from happening,” he says. “In my mind, the land office could be more assertive about habitat and species protections. But that’s a political choice.”

Buckwheat and other plant life in the Chihuahuan Desert.
Courtesy of Daniela Roth

In April of 1995, David Deardorff, a biologist with the State Land Office, sent a seven-page memo up the chain of command, analyzing the arguments for and against protecting gypsum wild buckwheat.

Deardorff cautioned that if all the Black River plants on state land were lost, the population would fragment into two, leaving small, isolated islands on federal land, which might eventually die out. Since the plants occupy less than 30 acres here, it would be relatively easy for oil and gas producers to work around them. Still, the politics were delicate: The oil and gas industry, he wrote, appeared “skittish and frightened that their industry will be shut down to protect some weed.” He recommended navigating these choppy waters by protecting species on a case-by-case basis.

At the time, gypsum wild buckwheat was the only imperiled plant that had been inventoried on state lands. So Ray Powell, then a couple years into his first stint as land commissioner, had hired botanist Bob Sivinski to survey trust lands throughout the state for rare plants.

“This is a weird office with a lot of autonomy, and if you don’t pay attention, bad things can happen,” Powell explains. “If you do pay attention, you can be really creative and do good things.” His goal, he says, was to figure out “what the heck was out there,” and eventually, to do more to protect the health of the land.

In the absence of real legal protections, however, the impact of any one commissioner can be limited, for better or worse. When I met him this fall for lunch, Sivinski told me his 1990s surveys had revealed new rare plant populations on state land, including a dense colony of Tharp’s bluestar, listed as endangered under state law, in the Permian Basin. I asked him how the land office had used that information. He shrugged, unsure. “The site I did locate, the next land commissioner built a well pad right on top of it,” Sivinski said. “So it didn’t really do much good knowing it was there.”

Contributing Editor Cally Carswell writes from Santa Fe, New Mexico.

This story was funded with reader donations to the High Country News Research Fund.